Victims' Wrongs

By William Deresiewicz

June 27, 2011

Last year’s kerfuffle over the “Ground Zero mosque”–i.e., downtown Islamic cultural center–once again raised, at least implicitly, the question of victims’ rights. We mustn’t allow the center to be built, the argument went, because its presence would offend the sensitivities of 9/11 victims’ families. The same kind of case is periodically made with respect to victims of rape and other heinous crimes or the relatives of victims of murder. Our criminal justice system, we’re told, gives too much deference to the rights of the accused. Surely the people who need protecting are the ones who have already suffered harm, not the ones who may have done the harming.

However sympathetic one might be to such an argument, it has a problem. There’s no such thing as victims’ rights. More than that, our whole idea of criminal justice, as it emerged in ancient Athens, is built upon their negation. The belief that justice acts on behalf of the injured, which lies behind the notion of victims’ rights, belongs to an older system: vendetta. You killed my brother, so I’m going to kill you; I kill you, so your cousin’s going to kill me. Tit for tat, death for death, forever and ever: the kind of unending cycle of retribution that still prevails in some societies and often prevails between societies (Israelis and Palestinians, Hutus and Tutsis), where no overarching structure exists to settle opposing claims.

In the Oresteia, Aeschylus dramatized the transition to a new system. Instead of the endless blood feuds of the clans, the establishment of a court. Now the state would assume responsibility for justice, and its decisions would be final. But crucial to the new conception was the understanding that the state acted, not on behalf of the victim–that would simply be vendetta in another form–but on its own. The law was violated, not the person. The state was injured, not the victim. And so it is today. If Smith hits Jones, the case that is brought is not Jones v. Smith, but the People v. Smith. The harm is not to Jones, who has no special standing in the matter, but to us all.

It is natural, of course, to feel otherwise. It is also natural to want to take revenge. But civilization, as the Athenians understood, often requires that we put away what is natural.